Last Revised On: NOVEMBER, 2022

1. CONTRACT. These Terms and Conditions of Sale together with the terms set forth in the sales order (collectively, the “Order”) are the only terms and conditions which govern the sale of the materials by Outlast (“Seller”) to the buyer named in the Order (“Buyer”). Seller’s acceptance of, commencement of performance on, or fulfillment of the Order will not constitute acceptance of Buyer’s terms or conditions irrespective of whether Buyer submitted its own purchase order on such terms and conditions.
2. DELIVERY. Delivery dates are estimated only and are subject to change upon notice from the Seller. Unless otherwise agreed in writing by the parties, Seller will deliver the materials to Seller’s location (the “Delivery Point”) using Seller’s standard methods for packaging and shipping such Materials. Buyer is responsible for all loading costs and for providing equipment and labor reasonably suited for receipt of the Materials at the Delivery Point. Seller may, in its sole discretion, without liability or penalty, make partial shipments of all such Materials to Buyer. Each shipment will constitute a separate sale, and Buyer will pay for the Materials shipped whether such shipment is in whole or partial fulfillment of the Order.
3. TITLE AND RISK OF LOSS. Title and risk of loss passes to Buyer upon delivery of the Materials at the Delivery Point.
4. SHIPPING TERMS.  Delivery is made based on the shipping terms specified on the Order, as stated in Incoterms® 2022.
5. PAYMENT TERMS. Payment terms are as set forth in the Order. If no payment terms are specified in the Order or another agreement between Buyer and Seller, the net amount is payable within thirty (30) days after the date of Buyer’s receipt of the Material.
6. LIMITED WARRANTIES. Seller makes no warranties with respect to the Material sold hereunder except that (i) Seller will pass title to the Material to Buyer, free and clear of all liens, and (ii) the Material will substantially conform to the commercial grade of material specified in the Order. THE MATERIAL IS SOLD “AS IS.” SELLER DISCLAIMS ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND INFRINGEMENT OR ANY OTHER WARRANTIES IMPLIED BY LAW, CUSTOM, TRADE, COURSE OF DEALING OR OTHERWISE. Buyer acknowledges and agrees that it alone has determined the intended purpose and suitability of the Material, and that any technical or other advice given by Seller is provided solely at Buyer’s risk. Further, Buyer assumes all risk of use of the Material for any purpose.
7. REMEDIES FOR BREACH OF WARRANTY. Seller will not be liable for a breach of the warranty set forth in Section 6 unless: (i) Buyer gives written notice of the defect (“Notice of Breach”), reasonably described, to Seller within seven (7) days of the date on which the Materials were received by Buyer; (ii) Buyer (if requested to do so by Seller) returns such Material to Seller’s place of business at Seller’s cost for examination at such location; (iii) Seller is given a reasonable opportunity after receiving such Notice of Breach to examine such Material; and (iv) Seller confirms Buyer’s claim that the Materials are defective. This limited warranty is null and void, and Seller shall have no liability to Buyer, if Buyer(i) used the Materials after giving such Notice of Breach; or (ii) failed to follow the oral and written instructions of Seller as to storage and maintenance of such Materials. The sole remedy of Buyer for a breach of this limited warranty is, at Seller’s option, curing the non-conformity or replaing the non-conforming material.
8. LIMITATIONS OF LIABILITY. Other than the liability of Seller for breach of warranty, the sole remedy for which is set forth in Section 7, Seller’s liability for all claims arising from or in connection with the Order is limited to the amount actually paid by Buyer to Seller hereunder. IN NO EVENT WILL SELLER BE LIABLE TO BUYER OR ANY THIRD PARTY FOR ANY LOSS OF USE, REVENUE OR PROFIT OR DIMINUTION IN VALUE, OR FOR ANY CONSEQUENTIAL, INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY, OR PUNITIVE DAMAGES WHETHER ARISING OUT OF BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE) OR OTHERWISE, REGARDLESS OF WHETHER SUCH DAMAGES WERE FORESEEABLE AND WHETHER OR NOT SELLER HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, AND NOTWITHSTANDING THE FAILURE OF ANY AGREED OR OTHER REMEDY OF ITS ESSENTIAL PURPOSE. Any claim will be deemed waived by Buyer unless delivered in writing to Seller within seven (7) days of the date on which the Material was received by Buyer. Buyer waives all applicable statutes of limitations and agrees that any legal proceeding for any breach of this Order is waived unless filed within one hundred and eighty (180) days after the date on which the Material was received by Buyer.
9. VARIATIONS. Weights and quantities shown hereon are estimated. Invoice weights may vary in accordance with permissible variations as are customary in the industry or as shown in Seller’s published price lists.
10. RESCHEDULING. Requests by Buyer for delivery rescheduling (either earlier or later) will be accommodated, if possible, at the sole discretion of Seller. If agreed to by Seller, a rescheduling request by Buyer that extends delivery sixty (60) days or more beyond the originally scheduled delivery date will result in a rescheduling charge equal to two percent (2%) of the total Order price for each thirty (30) day delay beyond such a sixty (60) day period, up to a maximum rescheduling delay of one hundred twenty (120) days beyond the originally scheduled delivery date. In any case where Seller does not agree to accommodate a rescheduling request, Seller may proceed to ship material to Buyer at full order value.
11. FORCE MAJEURE. Seller will not be liable for any delay in performance, or nonperformance, due to any cause beyond the Seller’s control, including but not limited to, fires, floods, or other forces of the elements, acts of God, strikes, or labor disputes, accidents to machinery, acts of sabotage, riots, pandemics, government shutdowns, precedence of priorities granted at the request or for the benefit, directly or indirectly, of any federal, state, or provincial government or any subdivision or agency thereof, delay in transportation caused by transportation facilities, restrictions imposed by federal, state, provincial or other governmental legislation or rules or regulations thereof, or a substantial increase in Seller’s cost (each, an “FM Event”). For purposes of this Order, “a substantial increase in Seller’s cost” is deemed to have occurred if Seller’s performance hereunder would result in a loss to Seller on the sale evidenced by this Order, as computed under Seller’s normal accounting procedures. Upon the occurrence of any FM Event, Seller may terminate this Order in whole or in part without liability for any delay in performance, or nonperformance hereunder; provided, however, that if Seller does not terminate this Order due to the occurrence of an FM Event, Seller and Buyer will each take such actions that are commercially reasonable under the circumstances to overcome the FM Event and to proceed with the performance of their respective obligations hereunder, including without limitation Buyer’s extension of the term of any letter of credit (or other instrument for payment of amounts due hereunder) opened by Buyer for the benefit of Seller or any of its affiliates in connection herewith.
12. TAXES AND OTHER CHARGES. Buyer will pay, or reimburse Seller if it pays, any and all taxes or tariffs or any other similar charges imposed upon this Order,  the material covered hereby, or the delivery or use thereof or upon any document of title or instrument used in connection with the transaction described herein, and any and all taxes, tariffs or charges imposed upon or measured by the sales contemplated herein or the purchase price payable hereunder, in each case, including any interest and / or penalty thereon.
13. ANCILLARY FREIGHT CHARGES. If Seller is responsible for ocean freight on the Order, Seller’s confirmation is based upon expected document charges. If the Buyer requires more than one round of revisions on draft BLs, additional revisions will be invoiced at $150 per round to the Buyer.
14. ALLOCATIONS. Seller, in its sole discretion, may allocate the Material among its suppliers in such manner as it may determine, without liability to Buyer for any delay in the delivery of, or failure to deliver, the Material.
15. DEMURRAGE CHARGES. Any demurrage charges due to Buyer’s delays are chargeable to Buyer.
16. SERVICE CHARGE; COLLECTION COSTS; SET OFF. A service charge of 1.5 % per month (or, if lower, the maximum interest allowed by law) will be applied to all invoices for which payment is not received by Seller within 15 business days of the applicable due date. If Buyer defaults in making payment of any amount due hereunder, Seller is entitled to recover from Buyer all costs of collection, including but not limited to, collection fees, attorney fees and court costs and. Without prejudice to any other right or remedy it may have, Seller reserves the right to set off at any time any amount owing to it by Buyer against any amount payable by Seller to Buyer under this Order or any other Order, contract or agreement between the parties.
17. SECURITY INTEREST. Buyer hereby grants to Seller a security interest in the Material sold hereunder (and all proceeds thereof) until Buyer has (a) paid the purchase price payable hereunder in full, plus accrued service charges and other amounts due hereunder, if any, and (b) fully performed all of Buyer’s other obligations hereunder. Buyer acknowledges and agrees that these terms and conditions will constitute a security agreement under the Uniform Commercial Code in effect from time to time in the State of Delaware (“UCC”) that may be enforced in any jurisdiction that Seller determines necessary or advisable to evidence, perfect, or act upon the security interest created hereby. The security interest granted under this provision constitutes a purchase money security interest under the UCC. Seller will have all rights and remedies of a secured party under the UCC in the event of a breach or default by Buyer in any of its obligations hereunder. Buyer hereby appoints Seller as Buyer’s agent and attorney-in-fact to execute and / or file such financing statements and other documents as Seller determines necessary or advisable to evidence, perfect, or act upon the security interest created hereby without further action of Buyer.
18. COMPLIANCE WITH LAW. Buyer will comply with all laws, regulations and ordinances applicable to the transactions contemplated by this Order and the sale and use of the Materials that are the subject of this Order. Buyer will maintain in effect all the licenses, permissions, authorizations, consents and permits that it needs to carry out its obligations under this Order. Buyer will comply with all export and import laws of all countries involved in the sale of the Materials or any resale of the Materials. Buyer assumes all responsibility for shipments of Materials requiring any government import clearance. Seller may terminate this Order if any governmental authority imposes anti-dumping or countervailing duties or any other penalties on the Materials.
19. AMENDMENT; NON-WAIVER. This Order may not be modified, altered or waived, either orally, by usage of trade, course of performance or course of dealing. Any change to, deviation from, or waiver of any provision of this Order will only be made pursuant to a writing signed by Buyer and Seller. No failure to exercise, or delay in exercising, any right, remedy, power or privilege arising from this contract operates, or may be construed, as a waiver thereof. No single or partial exercise of any right, remedy, power or privilege hereunder precludes any other or further exercise thereof or the exercise of any other right, remedy, power or privilege.
20. SEVERABILITY. If any term or provision of this Order is invalid, illegal or unenforceable in any jurisdiction, such invalidity, illegality or unenforceability will not affect any other term or provision of this Order or invalidate or render unenforceable such term or provision in any other jurisdiction.
21. ASSIGNMENT. Buyer will not assign any of its rights or delegate any of its obligations under this Order without the prior written consent of Seller. Any purported assignment or delegation in violation of this Section 21 is null and void. No assignment or delegation relieves Buyer of any of its obligations under this Order.
22. TERMINATION. In addition to any remedies that may be provided under this Order, Seller may terminate this Order with immediate effect upon written notice to Buyer,  if Buyer: (i) fails to pay any amount when due under this Order and such failure continues for five (5) days after Buyer’s receipt of written notice of nonpayment; (ii) has not otherwise performed or complied with any of the provisions of this Order, in whole or in part; or (iii) becomes insolvent, files a petition for bankruptcy or commences or has commenced against it proceedings relating to bankruptcy, receivership, reorganization or assignment for the benefit of creditors.
23. JURISDICTION. All disputes arising directly or indirectly hereunder or in connection herewith will be resolved in the federal or state courts located in the State of Delaware, in the United States of America. Buyer hereby consents to the exclusive jurisdiction of the state and federal courts sitting in the State of Delaware, (b) agrees to appear in any such proceeding upon notice thereof, and (c) waives the right to assert that any action in any such court is in an improper venue or should be transferred to a more convenient forum. The losing party in any lawsuit will pay its own and the prevailing party’s attorney’s fees, costs and expenses.
24. APPLICABLE LAW. All questions arising hereunder, in connection herewith, or in connection with a quotation or any other document submitted in connection therewith is interpreted and resolved in accordance with the laws of the State of Delaware (including without limitation the UCC) without regard to its conflicts of law provisions and excluding the United Nations Convention on Contracts for the International Sale of Goods.
25. NOTICES. All notices, requests, consents, claims, demands, waivers and other communications hereunder (each, a “Notice”) is in writing and addressed to the parties at the addresses set forth on the face of the sales confirmation or to such other address that may be designated by the receiving party in writing. All Notices are delivered by personal delivery, nationally recognized overnight courier (with all fees prepaid), facsimile (with confirmation of transmission) or certified or registered mail (in each case, return receipt requested, postage prepaid). Except as otherwise provided in this Order, a Notice is effective only (a) upon receipt of the receiving party, and (b) if the party giving the Notice has complied with the requirements of this Section.